Electronic discovery, or e-discovery for short, is the digital equivalent of the common-law process whereby documents which could be relevant in a dispute are disclosed to both parties to ensure transparency.

Legal professionals say almost all cases in Ireland now involve some elements of electronic evidence. High-profile examples include the Supreme Court’s recent attempts to unravel the finances at the Quinn Group, or the ‘Lying Eyes’ case from 2008, where evidence recovered from computers was used to prove that Sharon Collins sent emails soliciting a hitman to murder her husband and his two sons.

Amount of data is increasing

The scale of the challenge lies in the massive continued growth of data: EMC estimates the rate of new information is doubling every two years.

The guide covers a range of topics, such as information management in preparation for e-discovery. It also details the steps needed to identify, preserve, collect, process and review data before it has to be presented as part of a proceeding.

Speaking last year, Dermot Moore, an information governance specialist and one of the contributors to the guide, said: “It’s a very big problem for organisations. It’s a whole new dimension that they have not had to think about before. We’ve moved from something that was very tangible in terms of paper discovery to something that’s intangible. It’s understanding what those things are – what is needed for a case, and what is within the scope?”

Part of the reason for preparing the guide is that the potential expense of e-discovery can be high, which the report acknowledged “may inhibit access to justice and generate undue cost”. It said a reasonable approach to discovery was needed “which is proportionate and cost-effective given the matter at hand”.

Colm Murphy runs the e-discovery practice at Espion, and also contributed to the guide. He said Irish organisations should take the opportunity to put controls in place to manage their information better. This makes it both easy and fast to gather and review it in the event of a dispute.

“If you have documents all over the place, unfortunately for you, you still have to go through the [e-discovery] exercise,” he said. “The very same procedures, controls and technologies apply whether it’s a HR dispute, a compliance issue or whether it’s a criminal investigation or an IT security issue. The work that you do has benefits for all of those areas.”

The guide was compiled by the eDiscovery Group of Ireland, a seven-member ad-hoc working group of technology and legal professionals, all with significant experience in handing e-discovery both in Ireland and internationally.